First Amendment Scholarship Update - Religion

Here is this week's collection of newly available scholarship on religion topics:

1) John D. Inazu (Duke University School of Law), The Unsettling ‘Well-Settled’ Law of Freedom of Association, forthcoming in 43 Conn. L. Rev. --- ( 2010). The abstract states:

This article brings historical, theoretical, and doctrinal critiques to bear upon the current framework for the constitutional right of association. It argues that the Supreme Court’s categories of expressive and intimate association first announced in the 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. Intimate association and expressive association are indefensible categories, but they matter deeply. They matter to the Jaycees. They matter to the Chi Iota Colony of the Alpha Epsilon Pi fraternity, a now defunct Jewish social group at the College of Staten Island that had sought to limit its membership to men. They matter to the Christian Legal Society at Hastings Law School, a student group denied official recognition because of its desire to limit its membership to Christians who adhered to its moral code (which included a prohibition on homosexual conduct). Each of these groups sought to maintain an unpopular composition and message in the face of anti-discrimination laws. Each was denied associational protections. Each was forced to change its composition – and therefore its message. Each no longer exists in the form it once held and desired to maintain.

The demise of associational protections is at least partially attributable to the Roberts categories of intimate and expressive association. These categories set in place a framework in which courts sidestep the hard work of weighing the constitutional values that shape the law that binds us. This article exposes the problems inherent in these categories and calls for a meaningful constitutional inquiry into laws impinging upon associational freedom. It suggests that the Court eliminate the categories of intimate and expressive association and turn instead to the right of assembly, which emphasizes the centrality of dissent to associational freedom.

2) Bernadette A. Meyler (Cornell University - School of Law), Constitutional Commitments and Religious Identity, forthcoming in Cornell Journal of Law and Public Policy. The abstract states:

This essay comments on Steve Shiffrin's The Religious Left and Church-State Relations. It contends, on the one hand, that Shiffrin has valuably brought to the fore various reasons why religious believers might resist close relations between church and state. On the other hand, it argues that no fundamental connection exists between the "religious Left" and a particular position on church-state relations and that religious liberals will not necessarily be more persuasive than secular liberals in arguing against positions espoused by religious conservatives.

3)  Paul Horwitz  (University of Alabama School of Law), Of Football, ‘Footnote One,’ and the Counter-Jurisdictional Establishment Clause: The Story of Santa Fe Independent School District v. Doe . The abstract states:

This article is a chapter in the forthcoming collection First Amendment Stories. It tells the story of Santa Fe Independent School District v. Doe, a case in which the United States Supreme Court struck down a school policy establishing an election mechanism that enabled student-led prayers before football games. It offers both a doctrinal and a human perspective on the case.

In particular, this article focuses on two issues. First, it argues that the first footnote in the Supreme Court’s opinion in Santa Fe, recounting the strenuous efforts that both school officials and private citizens undertook to “ferret out” the identity of the anonymous plaintiffs in the case, deserves greater attention. “Footnote One” speaks volumes about why the election mechanism the school district tried to employ as a “circuit-breaker” between government speech and private speech failed, and more broadly about the meaning of the Establishment Clause in overwhelmingly religiously homogeneous jurisdictions.

Second, it argues that for similar reasons, there are good grounds for thinking about the Establishment Clause in a “counter-jurisdictional” fashion: that is, despite its own language, the Establishment Clause should, if anything, be more strictly maintained at the state and local level than at the national level. This suggestion, which follows from the lumpy rather than even nature of religious diversity in the United States, runs counter to an increasing trend on the Court and in legal scholarship in favor of a “jurisdictional” reading of the Establishment Clause which would apply it more loosely at the state and local level than at the national level.

4) Joseph Vining (University of Michigan Law School), The Consequence of Human Differences, forthcoming in  Journal of Law, Philosophy and Culture ( 2010). The abstract states:

This essay explores the ways in which the recognition of individual and person in the legal form of thought distinguishes it from forms of thought in evolutionary biology and mathematics that are put forward as means to a complete picture of the world. The essay observes that the legal form of thought is in fact deeply involved in our modern understanding of Nature itself.

5) Carmel Ullman Chiswick (University of Illinois at Chicago - Department of Economics), Economics and Religion. The abstract states:

This paper provides an overview of the relationship between economics and religion. It first considers the effects of economic incentives in the religious marketplace on consumersﾒ demand for "religion." It then shows how this demand affects religious institutions and generates a supply of religious goods and services. Other topics include the structure of this religious marketplace and the related "marketplace for ideas" in a religiously pluralistic society. Empirical evidence is summarized for the effects on selected economic behaviors of religious affiliation and intensity of belief or practice.

6) Lisa R. Anderson ( College of William and Mary - Department of Economics),  Jennifer Mellor (College of William and Mary - Department of Economics ),  and Jeffrey Milyo (University of Missouri),  Did the Devil Make Them Do it? The Effects of Religion in Public Goods and Trust Games, 63 Kyklos 163 (2010). The abstract states:

We examine the extent to which religious affiliation and participation are associated with other-regarding behavior in canonical public goods and bi-lateral trust games. In general, religious affiliation is unrelated to behavior in these experiments; further, there is only weak evidence that attendance at religious services is correlated with behavior in these games. Contrary to popular wisdom and several recent observational studies, religion is not strongly associated with increased cooperation and trust in our controlled experiments.

7) Michael Siam Heng Heng (National University of Singapore),  State and Secularism: Perspectives from Asia. The abstract states:

The concept of a secular state is important in many parts of Asia and how this is resolved has important implications for the social, economic and political development of various Asian countries. Unfortunately, problems of the secular state have all along been studied based on the historical experience of state formation in Europe, with little (or no) input from the Asian perspective. This book will for the very first time, present mainly Asian perspectives, while drawing on Western experience as well. Conceptual issues are discussed together with detailed accounts on how different countries and traditions understand and seek to implement the ideas of a secular state.

8) Otto F. von Feigenblatt (Nova Southeastern University), The Muslim Malay Community in Southern Thailand: A ‘Small People’ Facing Existential Uncertainty, 27 Ritsumeikan Journal of Asia Pacific Studies  53 (February 2010). The abstract states:

This article aims to apply Abulof's concept of "small peoples" to the case of the Muslim Malay Community in Southern Thailand. Existential uncertainty as an intersubjective reality is the defining characteristic of a "small people." Moreover, the article explores how the Muslim Malay community in the South of Thailand is facing ethnonational existential threats due to the assimilationist policies of the central government. The Patani-Malay language and the Islamic religion are threatened by policies favoring a homogenous national culture based on a unitary nation-state held together by the three pillars of nation, monarchy, and religion. Finally, the article concludes that one of the root causes of the Southern insurgency is the perceived slow death of the Patani-Malay ethnonationality by a significant number of traditional leaders and youths. Some "soft" approaches to deal with the intersubjective reality of existential uncertainty experienced by the Muslim Malay minority are also provided as tentative recommendations.

9) Colin Harvey (Queen's University Belfast - School of Law), Faith in Human Rights: Freedom of Religion and the European Convention on Human Rights . The abstract states:

This paper is a speech delivered to Northern Ireland Human Rights Commission conference in 2007 on faith and human rights.

JFB